DG v Secretary of State for Work and Pensions (ESA) [2010] UKUT 409 (AAC)

UKUT-AAC
DG v Secretary of State for Work and Pensions (ESA)
[2010] UKUT 409 (AAC) · 2010-11-04
DG v Secretary of State for Work and Pensions [2010] UKUT 409 (AAC) (04 November 2010) Human rights law article 6 (fair hearing) IN THE UPPER TRIBUNAL Case No.  CE/1084/2010 ADMINISTRATIVE APPEALS CHAMBER   Before Judge Mark   Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the case to be reheard by a new tribunal in accordance with the directions given below.     REASONS FOR DECISION[1]This is an appeal by the claimant with the permission of an Upper Tribunal judge from a decision of the First-Tier Tribunal.  That decision followed a paper hearing on 30 September 2009 and was to dismiss the claimant’s appeal from a decision of a decision maker dated 14 May 2009.  The decision maker had superseded an earlier decision of a decision maker awarding Employment and Support Allowance (ESA) to the claimant from and including 14 May 2009 on the ground that he had not achieved 15 points using the descriptors in Schedule 2 to the  Social Security (Employment and Support Allowance) Regulations 2008.  The First-Tier Tribunal concluded that decision maker’s decision was correct as the claimant only scored 12 points using those descriptors.[2]The decision is challenged on this appeal on the basis that the tribunal failed to make the necessary findings of fact, and that given the claimant’s mental condition and circumstances and the advice he had been given, he did not have a proper opportunity to present his case.[3]The claimant was born in 1974.  On 28 March 2009 he completed a limited capability for work questionnaire which was received by the Jobcentre on 31 March.  Under the heading “medical assessments”, there was a question “Are there any other people you would like us to consider contacting on your behalf?” The claimant replied “My doctor because this is making me a lot worse”.  In relation to a possible medical assessment he stated that he would need to make sure that someone he knew came with him, and that he could not use public transport, he could not be sure of controlling his toilet needs and he had severe panic attacks.  He went on to state that he suffered with mental illness, panic attacks, long term depression, paranoia, constant stomach cramps and sickness.  He described the drugs he took, which included methadone and stated that he received counselling.  He provided the name and address of his doctor and his support worker.  He stated that long term use of illegal and medical drugs had damaged his mental and physical health, although he had not used illegal drugs for years.[4]After describing various physical problems, he gave information as to his mental state.  He stated that he usually had difficulty finishing routine daily jobs because of his mental state; that he could not organise himself very often to start and keep on with routine jobs; that he had no self esteem or care about his welfare; that he could not cope very often with small changes to his routine if he knew about them in advance, and would have panic attacks; that he only felt confident going to a place he knew about if somebody went with him and that he got anxious and aggressive; that the thought of meeting new people often made him anxious and scared and he would panic and freak out; that he would upset other people and get upset by them and did not know why and little things could lead him to behave violently and that he had other problems dealing with other people that happened all the time.  He continued that he had been asked to attend a pathways to work interview and did not see how he could go and would not be able to deal with it.[5]The claimant attend for a medical examination on 12 May with his father, and told the approved disability analyst (a registered nurse) that he had got a lift to the examination centre but was unsure how long it took.  The examination and interview took 31 minutes, and the report was completed about an hour and a half later.  The report included references to low mood and low self esteem and to the claimant stating that he felt suicidal when he was stressed about coming to medicals.  The last time he had come to the examination centre he had to come off incapacity benefit as he was found fit to work by one of the doctors and was told he had to claim a new benefit.  He confirmed that he had started taking drugs when he was 15 and was on a methadone programme, the methadone being given to him by his father.  He had started drinking when his relationship broke up, and started drinking as soon as he woke up.  He drank 8 cans of strong cider a day.  He lived alone in a flat, and was not working or studying.  His father would come round daily to make sure he got up and dressed and his father would do the shopping.  He was always unable to deal with his own finances and correspondence due to lack of motivation.  He got irritated when asked stupid questions like this interview.[6]In the section headed “Medical Opinion – Mental, Cognitive and Intellectual Function”, the nurse considered that none of the descriptors 12-19 applied, although I am unable to follow her reasoning in respect of descriptors 14 to 19.  The nurse, who appears to have been working from a computer generated list of statements, reported that he had stated that he could usually make cold drinks and ready meals for himself, that he liked to watch television, that he was usually able to use a mobile phone for emergencies and that his neighbour would usually buy his cans but he could go himself if he needed to.  No reference is made in this area to his reported problems getting up and dressed, and his need for help from his father in other respects, despite these matters being recorded by her elsewhere and being apparently relevant to these descriptors.[7]The nurse describes his behaviour as “Reduced facial expression (suggests depression)”, which from its repeated use by approved disability analysts suggests that it is a computer generated option rather than the words of the person making the report.  He was also described as having poor eye contact.  He was also said to have no ideas of self harm despite the reference earlier in the report to his feeling suicidal when he was stressed about coming to medical examinations, a statement which is repeated later in the report.[8]The report also states at p.42 of the file that he appeared agitated and that he had poor rapport (suggesting poor social function).  It states that the claimant was agitated at having to go through the interview process and it had been difficult to obtain his history.  He thought the questions were stupid and was irritable throughout (p.43).  Despite this, the nurse concluded at p.41 that the claimant was unlikely to have a significant level of disability affecting his ability to cope with change, get to familiar and unfamiliar places and cope with social situations.[9]The nurse did conclude, however, that the claimant did frequently demonstrate a moderately disproportionate reaction to minor events or to criticism but not to such an extent that the claimant cannot manage overall day to day life when such events or criticism occur and that he was unaware of the impact of his own behaviour to the extent that(i) he had difficulty relating to others for prolonged periods, such as a week; or(ii) frequently caused distress to others.  He was therefore awarded 12 points on the assessment.[10]The decision maker accepted this assessment and superseded the award of ESA.  No evidence was sought from the claimant’s doctor or social worker.  A request for reconsideration was submitted in an appeal form dated 29 May 2009.  In it the claimant stated that he thought that the decision maker had failed to consider the seriousness of his illness, and that he required substantial care on a daily basis which had not been recognised at all.  The report was said to bear no resemblance to his actual condition as his own doctors had tried to impress.  I am unclear from the last statement whether the claimant thought that his doctor had provided a report.  It does not appear that anybody thought to tell him that they had no report from his doctor.[11]An internal request for reconsideration at p.58 notes that the nurse had not noted the reported need for the father’s intervention to make sure he washed and got dressed, his own lack of care and his continual drinking and sleeping under activity 16 (which is initiating and sustaining personal action).  The report was considered by a doctor who is an approved health care professional but was returned without correction on the basis essentially that there was no evidence of significant disability.  The doctor’s notes include the statement that the claimant could make meals, a surprising conclusion from the statement that he could make ready meals, which involves no more than heating them up.[12]The supersession decision was reconsidered but was not revised and the appeal proceeded.  A standard enquiry form was issued to the claimant dated 4 August 2009 and was received back completed on 13 August.  In it the claimant stated that he did not want a hearing where he and his representative, if he had one, could meet the tribunal and put his case.  When asked to set out any special arrangements he needed he wrote “I’d just like to say THIS WHOLE PROCESS is not helping my Mental Health”.  When asked to give the name and address of his representative, he provided his doctor’s name and address.  The hearing was dealt with on paper on 30 September 2009 and the appeal was dismissed.[13]At p.94 of the file is a letter dated 9 October 2009 from the claimant’s doctor to the DWP stating that he had “read the report today done by your team on [the claimant]”.  The doctor expressed the view that the claimant had been misgraded on coping with social situations as from the doctor’s own knowledge of him, in anything other than completely simple social situations the claimant would have a great deal of difficulty coping.  He found meeting new people particularly difficult and it brought on anxiety.  He had also been underscored particularly on coping with change as it had taken quite some time since the claimant joined the practice for him to settle in to the new routines.  The doctor observed that “the current drivers for his depression are mostly the interactions with your department … at the moment my fear is that you will destabilise his depression and possibly his drug dependency therapy by forcing him back too soon into the working environment.”[14]It would appear that this letter must have been prompted by the claimant taking the documents to which I have referred to the doctor, but it was only a month later that he consulted the local Citizens Advice Bureau.  By a faxed letter sent on 11 November, the welfare rights caseworker wrote asking for a statement of reasons.  The letter stated that the claimant had approached the Jobcentre Plus for advice regarding the First-Tier Tribunal appeal and had been told that he did not need to do anything.  The CAB had only seen the claimant that day and considered that he had a good prospect of success and had concluded that the only reason that his ESA had been stopped was that he was not competent to express his situation and had not received any formal advice on the process and the proceedings, and that he suffered acute mental health problems.  Incorrect information had been relied on and personal information omitted.[15]The First Tier Tribunal then agreed to provide a statement of reasons despite the lateness of the application, and it was provided in January 2010.  In relation to descriptor 16, initiating personal action, the statement simply says “The description of [the claimant’s] daily living did not indicate that he required frequent verbal prompting given by another person in his presence to initiate or sustain personal action.”  This is a reference to descriptor 16(d).  However, the tribunal fails to refer to descriptor 16(b) which carries 15 points and which is “Cannot … initiate or sustain personal action without requiring daily [emphasis provided] verbal prompting given by another person in the claimant’s presence for the majority of the time.”  Descriptor 16(f) carries only 6 points and it is therefore reasonable to infer that “frequent” is less regular than “daily”, and indeed less frequent that “for the majority of the time” in descriptor 16(c).[16]I also have some difficulty in following the reasoning of the tribunal in relation to descriptor 18, as the fact that the claimant will on occasions, if he has to, go out and buy his own alcohol in a local shop is not a very good reason for a conclusion that he is frequently unable to get to a specified place with which he is familiar without being accompanied by another person.  Indeed, he appears to have been familiar with the examination centre but claimed that he could not get there unless accompanied by another person.  He then arrived with his father.  The test in this respect is not any specified place with which he is familiar (as in descriptor 18(a)) but a specified place with which he is familiar.[17]On both these counts, it appears to me that the tribunal erred in law and its decision must be set aside.[18]I note that despite the plea for a new hearing, the set-aside application to the First-Tier Tribunal failed.[19]In seeking leave to appeal to the Upper Tribunal, the claimant essentially says that he got very confused and stressed and cannot cope.  He now has representation and wants the opportunity to have the appeal reheard with a proper written submission and up to date medical evidence.  I am unclear whether he also wishes to have an oral hearing at which he can be represented and possibly attend himself.[20]In granting permission to appeal, Judge Turnbull asked whether this was a case where natural justice required that the tribunal obtain evidence from the claimant’s GP or social worker.  He also drew attention to the fact that the claimant had stated that he wanted the DWP to contact his doctor and had named his doctor as his representative.[21]The representative of the Secretary of State on this appeal has submitted that the request to contact the doctor was to make arrangements for a suitably timed appointment for the medical examination and it is said that it is most unlikely that a GP would perform this task on behalf of his patient.  I accept that this was the purpose of the question but it is reasonably clear, in the context of his mental problems, that the claimant was saying that he wanted the doctor contacted because the benefit process was making him ill.  He is asking for medical evidence as to this to be obtained from the doctor.  In any event, if he has named the doctor as the person to be contacted to make an appointment, as requested in the form, it is not for those arranging the assessment to ignore the request without first checking what the claimant is trying to say either with him or with the doctor if necessary to ensure that he is not to be involved.[22]The same comment applies to the nomination of the doctor as the claimant’s representative.  The Secretary of State submits that the claimant is again mistaken as to what his doctor will do.  It is not for the DWP to make such an assumption without even telling the claimant.  Had the DWP made contact with the doctor, which was plainly the claimant’s intention, then it is likely in the present case that a report would have been provided for the tribunal which could well have been material.[23]Finally, I note that the Secretary of State has not responded to the point made by the claimant’s representative that the claimant approached the Jobcentre Plus for advice regarding the First-Tier Tribunal appeal and had been told that he did not need to do anything.  That was bad advice. Although it is said that proceedings before the First-Tier Tribunal are not adversarial in the same way as court proceedings, there is to a degree at least a perceived conflict of interest between the Secretary of State and the claimant, and it is plainly desirable that the claimant should have independent advice, particularly when he has mental health problems.  Further the advice that nothing needs to be done is very misleading.  It is only true in the sense that the appeal will proceed even if he does nothing.  It is common knowledge that appeals have a significantly greater chance of success if the claimant attends than if there is a paper hearing, and even without his attendance it must be in his interests to obtain a medical report if it is available and is likely to support him.  It ought also to be painfully apparent that a claimant with serious mental problems would be well advised to get help in presenting his case.[24]I see no reason to disbelieve the claimant that such advice was given to him, and it appears to me that that advice may have led him not to seek an oral hearing and not to obtain help.  If there is any practice of giving such advice at Jobcentres, it should cease immediately.  It is not possible to give proper advice to a claimant without investigation of all the facts, and that should be undertaken by an independent advisor.  Claimants should be advised, if they seek advice in relation to an appeal, that it would be best if they go to a local welfare rights organisation and be supplied with the necessary names and addresses.  On any footing they should not be told that they need do nothing without also being told that if they do nothing they can seriously prejudice their prospects on the appeal.[25]Quite apart from the errors of law which I have identified, there is a serious issue whether in all the circumstances of this case the claimant had the fair hearing to which he was entitled under article 6 of the European Convention on Human Rights.  It is, of course possible to waive the right to an oral hearing, but, as was stated by Lord Phillips CJ in Peter Smith v Kvaerner Cementation Foundations Ltd (the Bar Council intervening) [2006] EWCA Civ 242 (Kvaerner), at paragraph 29 in relation to the question whether a right to object on the ground of bias had been waived:
“The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an un-pressured decision.”
[26]Here the claimant waived the right to an oral hearing, but appears to have done so on the basis of misinformation from the Jobcentre, without being aware of all the material facts or of the consequences of the choice open to him.[27]What a fair trial requires cannot be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done - see per Lord Bingham in Brown v Stott [2003] 1 AC 681, at p.693.  Or, as it was put in CIS/540/2002 at paragraph 37, “…..it is the whole process and the way it actually works in the individual case that have to be judged for the purposes of Article 6”[28]As it was put in Dombo Beheer BV v the Netherlands, 27 October 1993, Series A, no 274, by the Court of Human Rights:
“33. Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see the Feldbrugge v the Netherlands judgment of 26 may 1986, Series A no 99, p 17, paragraph 44).   The Court agrees with the Commission that as regard litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-a-vis his opponents.   It is left to the national authorities to ensure that in each individual case the requirements of a “fair hearing” are met.”
[29]In this case, taking into account all the facts, I am satisfied that the waiver of the right to an oral hearing was ineffective.  Bearing in mind the bad advice given by the person at the Jobcentre, the claimants’ mental problems, his difficulties dealing with his appeal as described above, the fact that his problems in dealing with it were so manifest, the failure of both the DWP and the tribunal service to communicate with the claimant’s doctor either in respect of the appointment for a medical examination or as his nominated representative, and the likely consequences of that failure, I conclude that the claimant did not have a fair hearing of his appeal as required by article 6.  On that account also, the decision of the tribunal must be set aside.  It is irrelevant for this purpose how far the tribunal was or ought to have been aware of these problems, although it appears to me that it ought to have been alerted from the papers before it to all but the bad advice.[30]In listing the various factors which I have taken into account, I should not be taken as saying that they were all necessary to my decision.  As indicated above, each case must turn on its own facts.  In another case the absence of one or more of the matters to which I have referred would not necessarily prevent a waiver from being ineffective or make a hearing a fair one.  Indeed, even in the present case, the factors identified above which the tribunal could have identified from the file ought to have led it, in pursuit of the overriding objective to deal with matters fairly and justly, to adjourn to give the claimant the opportunity to provide medical evidence from his own doctor (cf [2010] UKUT 28 AAC, at paragraph 22).       (signed) Michael Mark Judge of the Upper Tribunal   4 November 2010

Cited in 2 later judgments